- Court
- New York Supreme Court, Appellate Division, Second Department
- Case
- Mohssen v. Gonzalez
- Docket
- 2021-06396
- Filed
- May 27, 2026
- Slip Op
- 2026 NY Slip Op 03300
- Citation
- 2026 NY Slip Op 03300 (N.Y. App. Div. 2d Dep’t 2026)
Background
Fahti Mohssen commenced an action against Ruben Gonzalez to recover damages for trespass and nuisance. After the Supreme Court, Kings County denied Mohssen’s motion for summary judgment on the amended complaint and granted Gonzalez’s cross-motion for summary judgment dismissing it, Mohssen moved for leave to reargue. Upon reargument, the court adhered to its prior determination. Mohssen appealed from the reargument order.
However, the record assembled by Mohssen on appeal did not include all of the relevant papers that had been before the Supreme Court, including a majority of the papers submitted in support of, and in opposition to, the underlying summary judgment motions.
Holding
The Appellate Division, Second Department dismissed the appeal, with costs. The court held that it is “the obligation of the appellant to assemble a proper record on appeal” and that an “appellant’s record must contain all the relevant papers that were before the Supreme Court,” citing Wilmington Trust Co. v. Buscemi, 207 AD3d 503 and CPLR 5526. The court found that the omission of a majority of the summary judgment motion papers rendered “meaningful review of the court’s order virtually impossible” and therefore required dismissal of the appeal.
Takeaways
This decision serves as a stark reminder of the critical importance of assembling a complete record on appeal. Under CPLR 5526, the appellant bears the burden of ensuring that the appellate record includes all papers that were before the court below. When key documents are missing — particularly the motion papers that form the basis of the order under review — the Appellate Division cannot conduct meaningful review and will dismiss the appeal outright, regardless of the potential merits of the appellant’s arguments.
The rule applies with particular force in summary judgment appeals, where the court must review the same evidence that was before the trial court to determine whether triable issues of fact exist. Without access to the motion papers, affidavits, and exhibits, the appellate court cannot perform the required de novo review of the summary judgment determination.
Why It Matters
For appellate practitioners, this case underscores a fundamental but sometimes overlooked requirement: technical compliance with record preparation rules is a prerequisite to appellate review. An otherwise meritorious appeal can be dismissed entirely if the record is incomplete. Attorneys handling appeals should carefully review CPLR 5526 and the applicable appellate division rules to ensure that all relevant papers are included in the appendix or record on appeal. The cost of assembling a complete record is minimal compared to the consequences of having an appeal dismissed for record deficiencies.